Issue 19 : Spring 1995
Table of Contents:
1. The Mesothelioma Epidemic in Britain
2. Parliamentary Inquiry into "Clawback" Activities of CRU
3. T&N plc: February Update
4. Verdict For Wittenoom Resident
5. Media Coverage of Asbestos Issues
6. Literature Review
1. The Mesothelioma Epidemic in Britain
At a London press conference organized by the Health & Safety Executive (HSE), Professor Julian Peto of The Institute of Cancer Research, announced figures which confirm the existence of an epidemic at which he had publicly hinted last year. Before a packed audience of press, representatives of unions and victim support groups and other interested parties, Peto warned that 1 in 100 of all British men now aged 50 could die from mesothelioma; building workers, particularly plumbers, gas fitters, carpenters and electricians, are expected to account for more than 24% of all mesothelioma fatalities.
Analyzing data for England, Scotland and Wales provided by the UK Mesothelioma Register, the epidemiologists were surprised to discover that "the vast majority of workers actually at risk from asbestos were not employed in occupations where the risk was recognised." During the twenty year period commencing in 1971, there were 183 recorded mesothelioma deaths amongst factory workers and others whose working conditions came under the auspices of the Asbestos Regulations of 1969. The corresponding figure for mesothelioma deaths amongst those workers exposed to asbestos through using asbestos-containing products outside the industry was 10,985.
According to Peto: "mesothelioma mortality can be taken as an index of past exposure to asbestos in the population." The peak of 3,000 annual mesothelioma deaths expected by the year 2020 could be used to calculate the number of all asbestos-related deaths. The HSE estimates that for "every death due to mesothelioma, there are two from asbestos-induced lung cancer." Assuming that the ratio between the incidence of mesothelioma and asbestos-induced lung cancer remains constant, it can be calculated that a total of 10,000 asbestos-related deaths could be reached annually in Britain. At the press conference, Peto warned of the on-going risk to workers whose trades bring them into regular contact with asbestos still contained in British buildings. He noted the British experience in the building, demolition and maintenance industries "which were and still are largely unmonitored," and pointed out that "workers should be aware of the risks and take appropriate precautions."
On March 3, the day following the conference, these findings were published in Volume 345 of The Lancet. Continuing increase in mesothelioma mortality in Britain was written by J.Peto, F.E.Matthews, J.T.Hodgson and J.R.Jones, the last two of whom work in the Epidemiology and Medical Statistics unit of the HSE. The paper called for "a public information campaign to alert... workers to the potential danger (of asbestos)." In early February, 1995 the HSE had placed full page advertisements in national newspapers and trade journals including the Daily Mirror, the Daily Star, Sun, Daily Express, Daily Mail and Today. Entitled "There's a hidden killer waiting for you to show your face," these advertisements were targeted at those occupational groups most at risk. No new legislation is planned although some adjustments to the scope of current legislation may be made according to a HSE spokesperson. In addition, the HSE plans to support further research by Professor Peto into the occurrence of mesothelioma among younger victims.
There has been considerable reaction from victim support groups, trade unionists and industry representatives to the news of increasing mesothelioma deaths. Nancy Tait, a leading activist for English asbestos victims, gave a cautious welcome to Professor Peto's work but expressed concern about problems arising from asbestos-related lung cancer and the attempts by industry to increase sales of chrysotile. In Scotland, Ian McKechnie of Clydeside Action on Asbestos, said: "The powers of the Health and Safety Executive are insufficient and we want to see them strengthened so that they regulate all aspects of asbestos... They should be given power to bring criminal prosecutions." A graph produced by the West of Scotland Cancer Registry that details the incidence of mesothelioma between 1975-1992 in Scottish males is stark in the clarity of its findings. While the incidence of mesothelioma was 60 per million in 1990 and 1991 in the West of Scotland as a whole, the rate for the same years in Clydebank was respectively 600 and 550.
Also reacting to Professor Peto's paper, a spokesperson for the Trades Union Congress warned of the dangers from crumbling asbestos insulation in British schools. Inadequate budgets mean that schools not properly maintained are a hazard to custodial staff and repair workers. Arthur Mullin, of the Thermal Insulation Contractors Association, has called for a re-appraisal of the 'if it isn't broken don't fix it' policy which results in continuing exposure to facility and maintenance workers whose routine tasks bring them into regular contact with asbestos-containing materials.
2.Parliamentary Inquiry into "Clawback" Activities of CRU
Following a parliamentary lobby on behalf of asbestos victims in November, 1994, the Select Committee on Social Security announced its intention to re-examine the workings of the Compensation Recovery Unit (CRU) and the "policy behind the legislation on which it is based." Set-up in 1989, the CRU recovers state benefits, including income support, unemployment benefit, statutory sick pay and disablement benefit, from victims who have been awarded more than £2,500 ($4,000) through court action against employers and others. Costing £4 million a year to administer, the CRU expects that receipts for the current year will exceed £100 million.
The parliamentary inquiry has been receiving submissions and hearing oral evidence from interested parties since the beginning of February. Presentations were made to the committee on February 1,8 & 15 and March 15 at the House of Commons by representatives of the Department of Social Security (DSS), Clydeside Action on Asbestos (CAA), the Association of Personal Injury Lawyers (APIL), the Law Society, the Association of British Insurers (ABI), the Under Secretary of State for Social Security, the Head of Litigation of the DSS Solicitors' Office and the Head of the Compensation Recovery Unit.
CAA's presentation called for the scrapping of the CRU maintaining that "the right of reparation is a fundamental and distinct right in our society." APIL's submission stated that "the DSS Clawback is iniquitous and a tax on accident victims," and called for the scheme to be abolished. Evidence from The Law Society maintained that the principle behind the CRU "was and remains unfair to accident victims." While admitting that provisions of the CRU have increased insurers' costs by 8%, the ABI seems satisfied with the current situation. Allegations that British insurers "are unreasonably trying to persuade claimants to settle below the limit in order to cheat the DSS" are strenuously denied by the ABI. A spokesperson for the Committee expects a report to be published in April, 1995.
3. T&N plc: February Update
Rumours of a possible take-over of T&N plc, formerly a leading company in the British asbestos industry, appeared in The Independent on Sunday newspaper of February 19. The City Talk column reported a "strong tip" that "GKN will make an agreed bid of 220p (for T&N) within a month." Another development at a T&N subsidiary, Tenmat Limited, occurred in February. At the beginning of the month, Judge Lachs of the Liverpool County Court handed down his judgment in the case of Gerard Bray v. Tenmat Limited. Mr. Bray died in 1991 from mesothelioma after having been employed as a painter for a firm of contractors who annually undertook painting operations during the Summer shut-down of Tenmat's premises in Ditton, Widnes. Finding for the plaintiff in the sum of £29,495, Judge Lachs was highly critical of Tenmat's "sense of duty towards those whose industrial safety was in their charge." Calling Tenmat "the vaunted kings in the asbestos realm", Lachs could not agree with the defendant's contention that they "neither knew nor could be expected to know of the risk of mesothelioma from exposure to asbestos dust in their factory" in the early 1960's.
An important issue in this case was whether or not the relatively low fiber count found upon microscopic examination of the deceased's tissues was indicative of occupational exposure. An initial examination found 7,000-10,000 fibers of asbestos per gram of dried lung; subsequently, readings were taken by electron microscope at Llandough Hospital which showed much higher figures: per gram of dried lung there were 30,000 fibers of crocidolite, 200,000 fibers of amosite and 400,000 fibers of chrysotile. The defendants maintained that the fact that both sets of figures showed relatively low levels of fiber content would indicate non-exposed mesothelioma: i.e. mesothelioma contracted from environmental exposure or an unknown cause. Concurring however with the analysis and logic of Dr Hasleton, one of the plaintiff's medical experts, the judge concluded that: "it is shown that tortious acts of a Defendant made a material contribution to the development of the relevant injuries."
4. Verdict For Wittenoom Resident
On Christmas Eve, Judge O'Meally issued his findings in the case of Vivien Margaret Olson v. CSR Limited and Midalco Pty Limited (formerly known as Australian Blue Asbestos/ABA); a sum of $823,594 was awarded for Mrs. Olson's para-occupational and environmental asbestos exposure in the asbestos mining town of Wittenoom in Western Australia. The 35 year old mesothelioma victim had lived in Wittenoom for two years as an infant; her father, a mine draftsman, brought asbestos fibers home on his work clothes every day. Mrs. Olson sued the defendants for "breaching their duty of care to the residents of Wittenoom."
"Piercing the veil" between CSR and ABA, the judge found that "CSR directed and controlled ABA." Furthermore he found that "the township of Wittenoom was in truth a company town... ABA had a control that was significant, that was absolute, and an influence that was pervasive." Satisfied that the concentration of asbestos dust in Wittenoom was heavy, the judge found that "the defendants knew that exposure to asbestos was dangerous to its workforce" and that "it constituted a risk of foreseeable injury" to the residents of the township. The judge concluded that "the defendants and each of them, owed a duty of care to the plaintiff; that they failed to observe that duty of care; that as a result, the plaintiff was injured and that the risk of her injury was, at all times the defendants were operating their enterprise, foreseeable."
This verdict by the Dust Diseases Tribunal of New South Wales is a landmark in Western Australian asbestos personal injury litigation as Mrs. Olson is the first non-CSR employee in New South Wales to successfully sue the corporation. CSR has appealed this verdict to the Full Court of the NSW Supreme Court.
5. Media Coverage of Asbestos Issues
Along with the launching of the asbestos public awareness campaign by the Health & Safety Executive and the publication of The Lancet paper by Professor Peto (article 1), several other articles, television and radio programs have focused public attention on asbestos-related topics recently.
Asbestos Now and Asbestos-Concern Abroad by Paul Hatchwell appeared respectively in the November/December 1994 and the March/April, 1995 issues of Occupational Health Review. Asbestos Now assessed the current rise in mesothelioma, asbestosis and asbestos-induced lung cancer deaths in the U.K., discussed the implications of these findings and sought the opinions on these issues from those representing union members, health workers, the asbestos removal industry, civil engineers, thermal insulation contractors and the Health & Safety Executive. Concluding that "the history of asbestos health policy in the UK has been unimpressive," Hatchwell expressed doubts as to whether the government's publicity campaign will, in itself, solve the problems.
The second article outlined the levels of asbestos disease experienced by other European nations, the USA and Australia. With some exceptions, the author concluded that "mesothelioma among men, and to a lesser extent among women, has increased since the 1940s across the industrialised world, and in most cases, continues to increase." The author highlighted the need for stricter enforcement of asbestos abatement procedures and the prevention of abuse in the construction and demolition industries.
Invisible Death by Sally Moore and Joanne Lenaghan appeared in the February 10, 1995 issue of New Statesman and Society. Focusing on the statistics and experiences of women asbestos victims, the authors looked at various difficulties faced by this category of sufferers including the inability to gain compensation from former employers, the failure to gain recognition of their condition from the Department of Social Security and the Industrial Injuries Advisory Council and delays in accurate medical diagnosis.
Anticipating the publication of Professor Peto's paper in The Lancet, A Deadly Toll (The Economist, February 25) by Adam Raphael predicted that the rate of mesothelioma in Britain would triple over the next twenty-five years. Pointing out that the dangers of asbestos had been known since the 1930's, Raphael suggested that one British company in particular had "ignored or evaded" safety regulations.
The February issue of the APIL (Association of Personal Injury Lawyers) newsletter contained an article by Laurie Kazan-Allen entitled: 1995: Asbestos Update which juxtaposed an introduction to the complexities of asbestos-related diseases with the problems of regulation and compensation in Britain.
A Handful of Dust, an episode of the First Sight television series, was broadcast on March 16, 1995 on BBC 2. This thirty minute documentary examined the on-going problem of asbestos in London schools, apartment and civic buildings. It highlighted the pioneering work of Mrs Nancy Tait, founder of SPAID (the Society for Prevention of Asbestosis and Industrial Diseases), who has been warning since 1982 of the mesothelioma epidemic only recently identified by British epidemiologist Professor Julian Peto. The program was followed by a one hour discussion and phone-in on local radio in which Mrs. Tait, Professor Peto and Nigel Bryson of the General Municipal and Boilermakers Union answered callers' queries and debated the issues raised. The radio 4 BBC series: Face the Facts broadcast a special forty minute program on March 4 which looked at the history of asbestos in the UK.
6. Literature Review
Current Asbestos Legal, Medical and Technical Research is the title of Volume 10 of the Sourcebook on Asbestos Diseases textbook series edited by G.A. Peters and B.J. Peters. Medical specialists, social historians, sociologists, lawyers and engineers from the U.S., Canada, England, Australia, France and Brazil contribute chapters on asbestos-related subjects including: Shipboard Asbestos Use, Asbestos Assessment in Buildings, Asbestos Disease Screening Program, Knowledge of the Health Hazards of Asbestos, Asbestos in Brazil, Asbestos in Australia and others.
Mesothelioma: the story of an illness by Brenda McKessock is a very personal tale of the tragedy of her mother, Ellen McKessock, who died from mesothelioma with pleural thickening in 1993.
Work-Related Lung Disease Surveillance Report 1994 produced by the U.S. Department of Health and Human Services and compiled by the Division of Respiratory Disease Studies at NIOSH contains eleven categories of statistics of which asbestosis and malignant neoplasm of the pleura are the first two.
Constructing Law: Comparing Legal Action in the United States and United Kingdom by Thomas Durkin is a doctoral dissertation published in 1994 which reveals crucial differences in the legal, social, medical, economic and administrative systems of these two countries that affect the likelihood of legal proceedings being initiated in personal injury asbestos cases. Dr. Durkin's investigations produced some interesting statistics: in the U.K. although the incidence of mesothelioma is 3.8 times higher than in the U.S., the number of asbestos-related disease claims is only 75% of those in the U.S.
Dr. Durkin concludes that: "In the U.S., legal action was the result of trusted information flowing through positive gatekeeping networks (lawyers, doctors, unions); in the U.K., legal inaction was the result of blocked information flow through negative gatekeeping organizations and networks."
Redress, Justice and Revenge: A Case Study of Clydeside Action on Asbestos by Douglas Meggison is a masters dissertation which focuses on the structure and operations of the leading Scottish asbestos victims group. Dubbing Clydeside Action a 'pressure from below group,' Meggison analyzes the fundamental strengths of this Glasgow-based group which although "alienated ...from trade unions, the Labour Party, far-left parties, the medical and legal establishments, and the DSS" refuses to be marginalized.
Asbestos - An "Old" Burden Amongst Industrial Diseases translated into English by C. Williams is a 1994 paper which details steps taken in Germany by the Professional Association for the Chemical Industry to monitor workers who have been exposed to asbestos at work. Building on the success of a pilot project carried out in Cologne, all German companies with more than 500 workers are now required to identify employees formerly exposed to asbestos so that follow-up medical examinations can be undertaken.
Knowledge of the Health Hazard of Asbestos Prior to the Merewether and Price Report of 1930 by Morris Greenberg appeared in a recent publication of The Society for the Social History of Medicine. The twenty-three page article discussed the reasons for the long delay in initiating measures in Britain to minimize the dangers from occupational exposure to asbestos. According to the author, these delays constituted a "long series of lost opportunities for earlier recognition, effective intervention and the prevention of avoidable disease." Time constraints, political pressure, economic, social and historic factors were identified as contributing to a climate that inhibited effective action being taken.
Compiled by Laurie Kazan-Allen for the LKA Group*
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